The High Court of Australia has granted special leave to appeal from the Full Federal Court on the question whether rights of review of a trustee’s decision to issue an income contribution assessment to a bankrupt “cover the field” such that the general right of review under the Bankruptcy Act is excluded.
That is, whether a court can exercise the general power under s 90-15 of Schedule 2 to the Bankruptcy Act to review such a trustee’s decision when there is available a comprehensive and detailed review regime in Subdiv G of Div 4B of the Act.
In allowing an appeal from the trial judge, the Full Federal Court had, in its words, held:
“that there is a comprehensive and detailed regime in Subdiv G of Div 4B of the Bankruptcy Act for review of the trustee’s decision to make an assessment of the income derived by the bankrupt during a contribution assessment period, which evinces a legislative intention to cover the field; and that the general power in s 90–15 does not extend to the regulation of those matters that are addressed by way of the specific provisions in Subdiv G of Div 4B of the Act”.
See Bertram v Naudi [2026] FCAFC 40 at [53]– [67].
This is the not uncommon “covering the field” issue in statutory interpretation that has prompted the High Court to intervene; no reasons are published. See [2026] HCADisp 203.
Remuneration determinations
Colvin J of the Federal Court had subsequently found that the Full Court’s reasoning did not apply in relation to remuneration determinations under the Bankruptcy Act.
“Having regard to the express language in s 90-15, it is not the case that the whole of the responsibility for considering any issue in relation to the remuneration to be paid to a trustee is entrusted to the Inspector-General. Consequently, the Court’s supervisory jurisdiction in relation to remuneration remains. …
Section 139ZQ notices
Such an issue has also arisen in relation to rights of review of the issue of a s 139ZQ notice by the Official Receiver.
Despite a decision of a government officer being involved, it has been held that the decision to issue a s 139ZQ notice is not subject to administrative law review: Kiem Dang Investment Pty Ltd v Mansfield [2017] FCCA 725; (2017) 320 FLR 14.
The Court there declined to review the Official Receiver’s decision under s 10(2)(b)(ii) of the Administrative Decisions (Judicial Review) Act 1977 because it considered that the Bankruptcy Act itself made adequate provision for such a review – in other words, it covered the field.
